Deven Desai wonders if copyrights might be just as harmful to innovation in the software industry as patents:
It seems to me that copyright with its rather long term and (as Mr. Lee acknowledges) the ease with which one can obtain copyright protection could have as much if not more detrimental effect than the software patents to which he is opposed. I would offer Dan Burk and Mark Lemley’s Designing Optimal Software Patents which argues “Optimal software patent doctrine would constrain scope to deal with patent thicket while lowering the non-obviousness standard to validate more issued software patents” as a place to begin investigating this question but also welcome input about this debate.
I’ve actually read the Burk/Lemley paper and have been meaning to write about it for some time. But I don’t have time to dig into that now, so let me instead just quote an excellent response from Michael Chermside:
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Ever since the “Unlawful Internet Gambling Enforcement Act” passed during the last session of Congress, Rep. Barney Frank has been pushing to repeal it. Good for him. It’s a silly law for reasons Radley Balko of Reason magazine pointed out during testimony at a hearing Rep. Frank hosted last Friday. The hearing was held by the House Financial Services Committee, which Rep. Frank chairs, and it was entitled: “Can Internet Gambling Be Effectively Regulated to Protect Consumers and the Payments System?” In his testimony, Balko, a former colleague of mine at the Cato Institute, made the moral case against the law:
What Americans do in their own homes with their own money on their own time is none of the federal government’s business. Take online poker, by far the most popular form of online gambling. Poker has enjoyed a surge in popularity over the last several years. The game is about as mainstream and uniquely American as baseball. Poker evolved from similar card games in the early 1800s, then flourished in popularity on Mississippi’s riverboats, winning over such iconic American aficionados as Mark Twain.
Today, most daily newspapers have a poker column, including the New York Times. The game saturates cable television. Until recently, even several of the Supreme Court justices held a monthly poker game. Online poker is merely a new evolution of the game, similar to the way Civil War poker games introduced the straight, and gave us variations like draw and stud poker. The Internet merely removes the geographic barrier preventing those who love the game from finding opponents of similar skill who are willing to wager similar amounts of money.
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Peter Suderman of National Review Online has an excellent piece up this morning on the 2nd Circuit’s slap-down of the FCC on indecency. He argued that even conservatives — especially conservatives — should be concerned about FCC powers to regulate speech:
..from a conservative point of view…FCC regulation of broadcast speech creates exactly the sort of centralized, out-of-touch control mechanism that conservatives should want to avoid. One of the two measures the FCC is supposed to use when deciding whether or not speech is indecent is whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” Does anyone really think the FCC is equipped to enforce “community standards” from its coastal perch in Washington? It’s like some Bizzaro-world notion of local governance: putting a single federal agency in charge of “community standards” for a large, diverse country.
Worth reading. (Content warning: contains words “heck” and “asparagus.”)
Fred Von Lohman’s article in the Post chides a group of Congressmen for expecting universities to enforce copyright by fining or expelling students, or by installing filtering software. He urges instead that the university collect monies to pay the music industry for a blanket license for unlimited downloading, as they do for software. At least, it is not a compulsory license. And it seems to be a a reasonably practicable solution at one level.
(One practical problem: does the license transfer the rights in the sound recordings only? Or the rights of the composers and such as well? Licenses for music distribution are notoriously hard to obtain because of this fragmentation issue. Set it aside for now).
But note one key element on which the scheme relies–in order to have any incentive to negotiate for a license,
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Matt Yglesias makes a fair point about word choice in yesterday’s op-ed:
I guess I’m not thrilled with the word choice around “bad for the software industry.” Patents are bad for the development of new software. If you define “software industry” as “incumbent for profit software firms” it may be good for the “industry.” The thing to keep in mind with any sort of IP protection is that strong IP creates, on the one hand, an incentive for innovation but at the same time it also creates a barrier to innovation. In the case of software patents, the balance tips overwhelmingly in the direction of creating barriers — indeed, the main incentive it creates is merely for the innovative production of patents rather than of actual products.
Right. What I should have said is “bad for competition and innovation in the software industry.” For a variety of reasons I’ve discussed at length here on TLF, the incentive for innovation caused by software patents is pretty small. Therefore, the primary effect of software patents is to give an advantage to companies who primarily have good patent lawyers at the expense of companies who have only good engineers. The larger, less dynamic parts of the software industry are probably helped by software patents.
In addition to subscribing to our own podcast, you should also subscribe to Don Marti’s LinuxWorld podcast. It’s definitely more techie and less policy than our podcast, but it has a fair amount of interesting policy stuff as well.
This week’s episode, for example, is an interesting discussion with Brian Aker of MySQL. The first half is a fairly geeky discussion of MySQL features. But in the second half of the podcast, Don asks about the economic motivation for free software. Aker argues that there are fundamentally two motivations, whether the contributions are from an individual or a company: publicity and testing. That is, first, that opening your software up will cause it to be more widely distributed and popular, hopefully leading to more opportunities to sell services in the future. And secondly, if you have more users, and those users have access to your source code, you’re more likely to have unsolicited bug reports and even (if you’re lucky) bug fixes. Aker says that most free software developers—and companies supporting free software—are not doing it out of abstract altruism. Surprisingly for those who think the free software movement is populated entirely by dirty hippies, opening one’s source code can sometimes be a savvy business strategy.
Aker has more interesting things to say, and I bet Don will have more interesting guests in future weeks, so I encourage you to check out the podcast.
I make the case against software patents in the New York Times today. I use Bill Gates’s 1991 memo to his executives (which I discussed in Ars back in March) as a springboard to talk about the Verizon-Vonage dispute:
The Gates memo predicted that a large company would “patent some obvious thing,” and that’s exactly what Verizon has done. Two of its patents cover the concept of translating phone numbers into Internet addresses. It is virtually impossible to create a consumer-friendly Internet telephone product without doing that. So if Verizon prevails on appeal, it will probably be able to drive Vonage out of business. Consumers will suffer from fewer choices and higher prices, and future competitors will be reluctant to enter markets dominated by patents.
But don’t software companies need patent protection? In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection. The rules of copyright are simpler and protection is available to everyone at very low cost. In contrast, the patent system is cumbersome and expensive. Applying for patents and conducting patent searches can cost tens of thousands of dollars. That is not a huge burden for large companies like Microsoft, but it can be a serious burden for the small start-up firms that produce some of the most important software innovations.
Yet, as the Vonage case demonstrates, participating in the patent system is not optional. Independent invention is not a defense to patent infringement, and large software companies now hold so many patents that it is almost impossible to create useful software without infringing some of them. Therefore, the only means of self-defense is the one Mr. Gates identified 16 years ago: stockpile patents to use as bargaining chips in litigation. Vonage didn’t do that, and it’s now paying a very high price.
FCC Commissioner Robert McDowell marked his one-year anniversary at the commission last week. More than a symbolic milestone, the anniversary means the end of most of the conflict-of-interest restraints that — due to his prior tenure as a lobbyist — has kept him from voting on some key issues. Now that he’s freed, the commission will truly have, for the first time since Chester Arthur was president I believe, a full contingent of voting members.
McDowell marked the occasion by, appropriately enough, speaking his mind. He gave a barnstorm of a speech at the Broadband Policy Summit, taking a hefty swipe at the OECD and its recently-released stats on broadband. The OECD showed the U.S. lagging at 15th place interenationally in broadband penetration, leading to massive hangwringing from the media and from most policymakers. But McDowell, playing gloombuster, took issue with the OECD’s numbers in detail, pointing out its “fundamental flaws.” Among his criticisms:
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Google’s mapping service just introduced a new feature called “Street View,” offering detailed photos of addresses in San Francisco, New York, Las Vegas, Denver and Miami. While the company might not be breaking any privacy laws, the service raises concerns that need to be addressed.
The photographs are not live and were taken from a device with multiple cameras attached to a car that drove down each available street. The problem for some is that the cameras took photos of people not expecting to be photographed and broadcast across the Net. There are photos of women sunbathing at Stanford University, a man caught urinating in San Bruno, Calif., and a very clear picture of a woman’s thong underwear as she was getting into her truck.
Google argues that the photos are “no different from what any person can readily capture or see walking down the street.” That’s true if you can see the image for a few minutes and then it disappears, or if it is a random photo from a camera phone posted online. However, that’s not how it works.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.